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MOLINA v. MALLAH ORG.

April 1, 1993

FERNANDO MOLINA, et al., Plaintiffs,
v.
THE MALLAH ORGANIZATION, INC., et al., Defendants.



The opinion of the court was delivered by: WHITMAN KNAPP

 REVISED OPINION AND ORDER

 WHITMAN KNAPP, SENIOR D.J.

 This is an action, filed on March 6, 1991, alleging derivative claims by employees standing in the shoes of Trustees of the Garage Employees Union Local 272 ("Union") welfare and Pension Funds ("Funds") seeking contributions that allegedly should have been paid into the Funds but never were, pursuant to ERISA, 29 U.S.C. §§ 1132 (g)(2) and 1145 and the Labor Management Relations Act, 29 U.S.C. § 185(a), and a direct claim for damages they and a class of similarly situated persons suffered directly as a result of employers interfering with their rights under the Funds in violation of ERISA § 1140. We have already addressed two published Opinions to this complex litigation, denying, except as to Count II, defendants' various motions to dismiss the complaint, Molina v. Mallah (S.D.N.Y. 1992) 804 F. Supp. 504, and granting class certification with respect to plaintiffs' Count IV, Molina v. Mallah (S.D.N.Y 1992) 144 F.R.D. 37. Familiarity with those opinions is assumed.

 In April 1992 the Mallah defendants ("Mallah") filed a three-count third-party action against the Union, certain Union representatives, and a number of Union-appointed trustees to the Funds. The complaint alleges: (I) that the Union and Union representatives defamed Mallah, which is a claim under state law; and (II) that under ERISA, Mallah has a right of contribution against the Union and Union Representatives based on their breach of their duty of fair representation by failing either to commence any grievance or other proceedings to challenge Mallah's failure to make contributions on behalf of plaintiffs or to attempt to collect such contributions or even union dues. *fn1" The Union and its named representatives move to dismiss the above counts on the basis of a variety of jurisdictional and pleading deficiencies. For the reasons that follow, the motion is granted and counts I and II dismissed, with leave, however, to replead within 40 days if Mallah is able to cure the defects we detail below.

 A. COUNT I

 The gravamen of plaintiffs' original complaint is that defendants engaged in a scheme to prevent hundreds of covered employees from joining the Union and thus to evade making contributions to the Funds on their behalf. In this regard, the third-party complaint alleges at P 9 that:

 
As part of the Union's scheme to pressure and sabotage the business of the Mallah defendants, [the Union representatives] on behalf of the Union and within the scope of their duties, knowingly or recklessly, made numerous false and malicious statements about the Mallah defendants to their employees and others, including statements that: the Mallahs had defrauded their employees out of money and lied to them . . ; their "boss is a thief who belongs in jail" . . .; [a Mallah] is connected to organized crime . . .; [they] failed to make contributions owed to the Funds . . . even after the 1989 agreement . . .; [they] engaged in various illegal acts . . .; and [they can] acquire garages because "Shelly Mallah is a drug dealer" and is laundering money obtained from drug sales.

 To permit us to assert supplemental jurisdiction over Mallah's purely state law defamation claims, the third-party complaint must allege facts "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III." 28 U.S.C. § 1367. That is, the claims must in effect arise from the same transaction or occurrence or common nucleus of operative fact that is the subject matter of plaintiff's action. *fn2" See United Mine Workers v. Gibbs (1966) 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130.

 B. COUNT II

 Count II claims contribution from the Union and Union representatives based on the Union's responsibility for Mallah's having failed to pay contributions to the Funds. In this connection, Mallah alleged in P 9 of the third-party complaint a "scheme" by the Union "to pressure and sabotage the business of Mallah," and in PP 13 and 14 that:

 
the Union never commenced any grievance proceedings or other legal proceedings to challenge the Mallah Corporate defendants treatment of plaintiffs and other employees as noncovered employees; nor did it make any effort to recover Union dues or Fund contributions allegedly owing on their behalf.
 
14. . . . the Union was obligated to advise [plaintiffs] about their rights to have Fund contributions made on their behalf and to file grievances and take other appropriate legal action to enforce those rights. To the extent that plaintiffs and others similarly situated were covered by the collective bargaining ...

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